[Cites 12, Cited by 0]
Madras High Court
Thangavelu vs Kandaswami Gounder on 20 February, 2026
SA No. 175 of 1994
IN THE HIGH COURT OF JUDICATURE AT MADRAS
RESERVED ON : 27.11.2025
PRONOUNCED ON : 20.02.2026
CORAM
THE HONOURABLE MR.JUSTICE V. LAKSHMINARAYANAN
SA No. 175 of 1994
Thangavelu
Appellant(s)
Vs
1. Kandaswami Gounder
S/o Chinna Gounder, Old School Buildings, Nimili
Konampalayam, Coimbatore TK
2.Shanmugham (died)
S/o Chinna Gounder, Old School Buildings, Nimili
Konampalayam, Coimbatore TK
3.Marakatham
D/o Kandaswami Gounder, Old School Buildings,
Nimili Konampalayam, Coimbatore TK
4.Marappa Gounder (died)
S/o Rasa Gounder, Kaikolpalayam, Vallanapatti
Village, Coimbatore
5.Devaraj
S/o Palani Gounder, Kamaraja Palayam, Kannathu
Pudur Village, Avanshi TK.
6.Ammavasai Ammal
W/o Late Marappa Gounder, Vannan Thottam,
Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
7.Thangarasu
s/o Late Marappa Gounder, Vannan Thottam,
Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
1
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SA No. 175 of 1994
8.Viswanathan
s/o Late Marappa Gounder, Vannan Thottam,
Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
9.Saradhamani
W/o Shanmugam, Vannan Thottam, Kaikolpalayam,
Vallanpatti Village, Mailampatti post, Via. Civil
Artodrome, Coimbatore.
10.Thangamani
W/o Gurusamy, No.11/5 Sasthri Street,
Urumandampalayam, Coimbatore
11.Sulochana
W/o Thangavelu, 3/115 Kokangipalayam, Palladam,
Tituppur.
12.Kuppusamy
S/o Avinashi Gounder, 41 Periya Veethi,
Melakonampalayam Post, Coimbatore. R4 died. RR 6
to 9 brought on record as LRs of the deceased R4 vide
Court order dt 14/06/2019 made in CMP 10253 to
10255/2006 in SA 194/1994. RR 10 to 12 impleaded as
part respondents vide court order dt 19/01/2022 made
in CMP 13009/19 in SA 175/1994 -JNBJ
13.V.Saravanakumar
S/o. Venugopal, No.4, 8th Street Nehru Nagar West,
Coimbatore- 014.
14.S.Sudharani
W/o. Saravanababu, No.7/19B, CSI Colony,
Kondayampalayam, Vaiyampalayam, Coimbatore -
110.
15.Sri Saravanaa Fabs
Rep. by its Partner V. Saravanakumar, No.391/4, 2nd
Street, Nehru Nagar West, Coimbatore - 014.
16.S.Sasikala
W/o. Sithaganapathi, No.2/108, Panikanoor,
Samuthiram Post, Omaloor Vattam, Salem - 306.
2
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SA No. 175 of 1994
17.K.Mahesh Kumar
S/o. Karuppusamy, No.3/129, Manikampalayam,
Kunnathur Pudur, Coimbatore - 107.
18.T.M.Siva Shanmugam
S/o. Marudhachalam, No.14, Subramania Udayar
Street, Telungupalayam, Coimbatore - 039. R13 to
R18 are impleaded as respondents vide court order
dated 4.9.2025 made in CMP.No.11803/2025 in
SA.No.175/1994 (VLNJ)
Respondent(s)
PRAYER
Appeal filed under Section 100 of the Code of Civil Procedure, against the
judgment and decree made in A.S.No.206 of 1992, dated 25.08.1993 on the file
of Appellate Authority cum III Additional Sub Judge, Coimbatore as partly
confirmed in O.S.No.510 of 1981 dated 28.07.1992 on the file of the I
Additional District Munsif, Coimbatore.
For Appellant(s): M/s.K.Mayilsamy
(vide In C/o Dt: 11/10/2018)
For Respondent(s): M/s.R.Dillikumar For R3
M/s.L.Mouli For R10 To R12 ( Vide In Cmp)
R1 And R5-died (t/e)
R2-died Vide In Eb
R4-died (steps Taken)
R. Babu
For Rr 6 To 9
Mr.Anwar Sadath For Rr13 To 18
ORDER
The plaintiff appeals. For the sake of convenience, the parties shall be
referred as per their ranks in the suit.
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2.The plaintiff presented OS.No.653 of 1978, seeking partition and
separate possession, on the file of the Sub Court at Coimbatore. The prayer in
the suit was as follows:-
“a)directing the division of Schedule II and IV and
3/4th share in Schedule III into 3 equal shares and put
the plaintiff in possession of one such a share;
b)divide 1/4th share in Schedule III into four equal
shares and allot one such share to the plaintiff;
c)to appoint a commissioner to divide the properties.”
3.The plaintiff, defendants 2 & 3 are the children of the first defendant
and one, Marathal. The first defendant and his brother, one, Periya Gounder
were the sons of one, Sinniah Gounder. By way of a partition between the first
defendant and his younger brother Periya Gounder, a house in Kaikolapalayam
and lands measuring 48 cents in S.F.No.36/2 and 60 cents in S.F.No.38 in
Vellanaipatti Village, Coimbatore Taluk, Coimbatore District, were allotted to
the first defendant. As the first defendant could not conveniently enjoy the said
properties for himself and on behalf of his minor children, he executed a sale
deed on 21.11.1963, in favour of two persons, Periya Gounder and Ramasamy
Gounder. From and out of the sale proceeds and joint family funds, the first
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defendant purchased the suit second schedule mentioned property. Marathal’s
father owned the properties described in schedule 3. After his death, his four
daughters divided the property amongst themselves. Marathal got 1/4th share
and the remaining 3/4th share was purchased by the first defendant. The
purchase was, from and out of, the joint family funds. The plaintiff got married
in the year 1977. He wanted to move away from the family. Hence, the
defendants 1 & 2 executed a deed releasing their right over their house property
and the plaintiff became the absolute owner of the same.
4.On account of the misunderstanding that arose between the daughter in
law (wife of the plaintiff) and the first defendant, the first defendant alienated
the suit second schedule property in favour of the fourth defendant on
01.08.1977. The plaintiff pleaded that the sale is, sham and nominal, brought
about to defeat the interest of the plaintiff. He urged that the family had
sufficient income and it was from that income, the fourth schedule property had
been purchased by the first defendant. The plaintiff stated that he issued a
lawyer’s notice on 30.03.1978, seeking partition. The same came to be denied
by the defendants 1 & 4. Hence, the suit for partition.
5.Summons were served on the defendants. The first and fourth
defendants filed separate written statements. The first defendant admitted the
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relationship between the parties and the averments in paragraph No.5 and 6 of
the plaint relating to the manner in which the second schedule property was
purchased. He pleaded that he was a Mill Worker and from and out of his
income, Schedule III of the property was purchased. He alleged that when the
property was purchased, the plaintiff and the 2nd defendant were minors and did
not contribute towards the purchase of the said property. He added there was no
income from the property mentioned in the II Schedule, and that the plaintiff is
not entitled to any share in the III Schedule property. He agreed that there was a
release deed executed on 30.01.1978 by defendants 1 to 3 in favour of the
plaintiff regarding the house property situated at Kaikolapalayam.
6.He pleaded that this was pursuant to a family arrangement whereunder,
the plaintiff was to retain the house property and the landed properties were to
be enjoyed by defendants 1 to 3. He included this property as Schedule I to the
written statement. However, no Court fees, nor counter claim was made with
respect to this property. The first defendant alleged that the plaintiff did not act
as per the terms of the family arrangement and is coming forth with the present
suit. He admitted that the plaintiff and the defendants 1 & 2 were living as joint
family members and that the properties mentioned in the II Schedule to the
written statement was purchased in the name of the plaintiff, from and out of,
the income of the first defendant, and income from the landed properties.
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7.He pleaded the plaintiff did not have any independent source of income
and therefore, the properties mentioned in Schedule would also have to be taken
into consideration while dividing the entire properties. He further pleaded that
the property set forth in Schedule-IV does not belong to him and that he has
nothing to do with the same. Insofar as the properties mentioned in Schedule II
is concerned, he urged that he exercised his power as the Manager of the family
to discharge the dues under promissory notes incurred by him. He pleaded that
he had borrowed Rs.3,000/- from the 4th defendant in the year 1976 for repairing
the old house and also to celebrate the marriages of the plaintiff and the 2 nd
defendant. He added that in the year 1977, he further borrowed a sum of
Rs.3,000/- for the same purpose. As he was not in a position to repay the
amount, he executed a sale deed of suit property mentioned in schedule No.2 in
favour of the 4th defendant, and that the same is binding on plaintiff and
defendants 2 & 3. He pleaded that since all the properties have not been brought
into the suit, the suit is liable to be dismissed for the vice of partial partition.
8.The 4th defendant filed a separate written statement. He was concerned
only with Schedule-II of the suit. He pleaded that he was not aware of the
plaintiff and the defendants 1 & 2 being in a joint family, but he admitted that
they were living together. He added that 1 st defendant as the Manager of the
family, executed a sale deed in his favour. He pleaded that the sale deed dated
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01.08.1977, came about since the 1st defendant did not repay the promissory
note debts executed on 10.01.1976 and 09.04.1977. He added that the
borrowings had been made to celebrate the marriage of the 2 nd defendant and
plaintiff and also to renovate the old house in connection with the marriage.
9.He pleaded that the plaintiffs and defendants 1 & 2 were living together
when the borrowings were made, and at the time of sale. He added that the 1 st
defendant was looking after the entire affairs of the family, and that the
borrowings had been made for the benefit of the family alone. Hence, he did not
deem it fit to get the signature of the plaintiff and the 2 nd defendant in the sale
deed dated 01.08.1977. He relied upon the averments in the sale deed to
substantiate his case. He added that the house for which the renovation took
place have not been included as one of the items in the suit property.
10.Though he is not interested in the properties mentioned in the IV
Schedule of the suit, he pleaded that it was only after the sale in favour of the 4 th
defendant, that the 1st defendant had purchased the property mentioned in
Schedule-IV. He pleaded that the plaintiff has come forward with the suit, in
order to defeat the rights of a bonafide purchaser for value. Finally, he pleaded
that, in case the suit is decreed, the share allotted to that of the 1 st defendant may
be allotted to him.
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11.The purchaser of the properties mentioned in the III Schedule of the
suit from the 1st defendant was impleaded as a party to the suit on the basis of
the orders passed in I.A.No.235 of 1982 dated 18.12.1986. Though summons
were served on him, he remained exparte. The 2 nd defendant died pending the
litigation without leaving any issues.
12.By virtue of enhancement of pecuniary jurisdiction, the suit came to be
transferred to the file of the learned District Munsif, Coimbatore, and re-
numbered as O.S.No.510 of 1981.
13.On the basis of these pleadings, the learned Trial Judge framed the
following issues:-
“1/thjp nfhupago ghfk; bgw cupik cilatuh?
2/tHf;fpil 2. 3. 4tJ ml;ltizr ; brhj;Jf;fs;
FLk;gr ; brhj;Jf;fs ; vd;w Kiwapy ; ghfj;jpw;F
cupaitfsh?
3/Kjy ; gpujpthjpahy ; Twg;gl;Ls;s FLk;g Vw;ghL
cz;ikahdjh?
4/4. 5 gpujpthjpfspd; bgaupy; Vw;gl;Ls;s fpiuak;
FLk;gj;jpy ; cs;s cWg;gpdu;fisf ; fl;Lg;gLj;jf;
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Toajh?
5/thjp ve;j ghfj;jpw;F cupik cilatu;;?
6/ntW vg;gupfhu';fSf;F thjp cupatuhfpwhu;?”
14.The plaintiff examined himself as P.W.1. He marked Ex.A1 to Ex.A16.
The 4th defendant examined himself as D.W.1 and marked Ex.B1 to B7.
15.The learned Trial Judge answered issue Nos.1, 2 and 3 in favour of the
plaintiff and issue Nos.4 & 5 in favour of the defendants. He came to the
conclusion that the properties mentioned in Ex.B1 is jointly owned by the
family, and points out the release deed in favour of the plaintiff, and since that
property had not been included in the suit, it suffers from the vice of partial
partition and consequently, he dismissed the suit.
16.Aggrieved by the said judgment and decree, the plaintiff preferred an
appeal to the learned Sub Judge at Coimbatore. This appeal was received as
A.S.No.206 of 1992.
17.The learned Subordinate Judge, Coimbatore, agreed that the properties
were joint family properties and held that the suit was not bad for partial
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partition. He granted a preliminary decree for partition with respect to suit
properties mentioned in Schedule Nos.3 & 4, but confirmed the decree insofar
as the 2nd Schedule properties were concerned. He came to this conclusion on
the ground that the debt incurred by the 1st defendant from the 4th defendant
binds the plaintiff and defendants 2 & 3 and, therefore declared the sale valid.
18.Against the reversal, the plaintiff alone has preferred the present
second appeal.
19.This second appeal had been admitted by this Court on 28.02.1994 on
the following substantial questions of law:-
“1.Whether the judgment is not vitiated for the
reason that the reply notice issued by the 1st and 4th
defendants that constitute material pieces of evidence
have been ignored?
2.Whether the alienationn by the Manager of the
joint family without the major coparceners jointly
executing the same can bind the major coparcenors?
3.Whether pleadings as such without proof can be
acted upon or in other words whether pleadings can
take the place of proof?”
20.Pending second appeal, the properties mentioned in the III Schedule
was sold by the legal heirs of the 5 th defendant in favour of the respondents 13
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to 18. They filed an application to implead themselves in C.M.P.No.11803 of
2025 and the same was ordered by this Court on 04.09.2025. The purchaser of
Schedule-II properties / 4th defendant Marappa Gounder had passed away
pending the second appeal and his legal heirs were brought on record by this
Court by an order dated 14.06.2019. Similarly, respondents 10 to 12 were
impleaded by an order of this Court dated 19.01.2022.
21.I heard Mr.K.Mayilsamy for the appellant, Mr.R.Babu for respondents
6 to 9 and Mr.L.Mouli for respondents 10 to 12 and Mr.Anwar Sadath for the
respondents 13 to 18.
22.The admitted genealogy of the parties are hereunder:-
Sinniah Gounder
Kandaswamy Gounder D-1 Periya Gounder
Thangavel P-1 Shanmugam D-2 Maragatham D-3
23.It is the plea of Mr.K.Mayilsamy that the burden of proof is on the 4 th
defendant as a purchaser to show that the alienation made by the 1 st defendant in
his favour was for family necessity, which the 4th defendant had miserably failed
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to do so. He pointed out the 4 th defendant had only relied upon the recitals of the
sale deed marked as Ex.A7 in his favour, and did not mark the promissory notes
alleged to have been executed by the 1st defendant in his favour. He states that
the 4th defendant is not a stranger to the family since he is the son of Periya
Gounder, as is clear from the written statement, and was well aware about the
relationship between the other members of the family. He points out that on his
side, he had marked Ex.A13 to show not only sufficient funds were available
with the 1st defendant on the date of the alleged sale, but he had excess funds
which he had placed in a fixed deposit, and had withdrawn the amount nearly
three years after the alleged date of sale. He states the plaintiff never consulted
about the sale, nor did he consent to the same; and if the statement made by the
4th defendant is true, he would have been called upon to attest the sale deed,
which he did not do so. He points out that the Lower Appellate Court had relied
upon the pleadings of the 1st defendant to come to the conclusion that the
alienation had been made for family necessity based on the borrowals, and such
an approach is erroneous since the 1st defendant never entered the witness box.
24.Mr.R.Babu appearing for the legal heirs of the 4 th defendant urged that
the sale had been made for the benefit of the family, as is clear from Ex.A7. He
points out that, admittedly, Kandaswami Gounder was the Kartha of the family
consisting of himself, the plaintiff and the 2nd defendant. He urges that it is a
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settled position of Hindu Law, that a Kartha can alienate the property for family
necessity.
25.Mr.Anwar Sadath appearing for respondents 13 to 18 argued that his
clients have purchased the property from the legal heirs of Devaraj, who had
purchased the properties mentioned in third schedule of the suit on 16.03.1981
from the 1st defendant. He urges that the suit had been dismissed and by the time
the appeal came to be filed, Devaraj, who had been shown as the 5 th respondent
had passed away and, therefore, the decree with respect to the third item of the
property arraying the deceased person is a nullity. He adds that Devaraj had left
behind as his legal heirs, his wife and daughters and they had not been brought
on record. Without knowledge of the litigation, he had purchased the property
pending the second appeal in the year 2008. Therefore, he seeks this Court to
declare the decree for partition, insofar as the properties mentioned in suit
schedule III is concerned, as nullity.
26.Mr.L.Mouli urges that they are children of the pre-deceased daughter
of Kandaswami Gounder, namely, one, Subbathal. Kandaswami Gounder had
executed a “WILL” in favour of his grandchildren and the “WILL” had been
proved pursuant to the orders of the Court. He states that the plaintiff, the
defendants, and the children of Subbathal have settled the issues amongst
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themselves and requested this Court to record the compromise that had been
entered into between them.
27.I have carefully considered the submissions of both sides and I have
gone through the records.
28.Before I enter into a discussion on the respective arguments, I should
point out that both the Courts below had come to a conclusion that the
properties, which is the subject matter of the suit, are joint family properties.
Having come to the said conclusion, the Trial Court had dismissed the suit on
the grounds of partial partition. It was obvious that the plaintiff alone who could
have preferred an appeal to the learned Sub Judge. The learned Sub Judge too,
agreed with the Trial Court, that the properties are joint family properties.
Hence, the issue that the properties are joint family properties have attained
finality. The learned Sub Judge, as pointed out supra, had granted a decree for
partition for schedule Nos.3 & 4. He had dismissed the suit insofar as second
schedule alone is concerned. It had dismissed the appeal insofar as second item
is concerned, only on the ground that the alienation was made for legal
necessity. With respect to item Nos.3 & 4, the defendants have not preferred a
second appeal. Hence, the scope of this appeal is limited to whether the plea of
legal necessity has been made out.
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29.It is a settled position of law that the burden of proof is on the
purchaser - alienee to demonstrate that the sale made by a Kartha of a joint
Hindu Family was for legal necessity. The purchaser should establish the actual
existence of a genuine legal or family necessity. The purchaser should also show
that he had made proper and bonafide enquiries into the existence of such a
necessity and that, he had reasonably satisfied himself that such debts existed
before the purchase. Legal necessity does not mean actual compulsion, but
serious and sufficient pressure on the joint family which justifies the sale. The
Treatises on Hindu Law give examples of legal necessity, such as expenses for
maintenance of daughters, marriage, education of children, or payment of
Government dues or tax, etc., The purchaser would have to prove the necessity
by way of concrete and convincing evidence, which could be in the form of
documentation, money receipts, or witness testimonies to substantiate the claim.
30.At this juncture, it should be pointed out that the recitals in the sale
deed by themselves, while admissible, are not sufficient to prove the claims of
legal necessity on their own strength. Such recitals require corroboration.
Similarly, the scope of enquiry to be conducted by a purchaser is that, which is
expected of a person with ordinary prudence. This enquiry should not be
strained to such an extent that an alienee is required to prove how the Kartha
applied each and every part of the sale consideration. This is because the later
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are details, which would be only within the knowledge of the family members,
and would not be known to outsiders like the alienee. The onus of proof on the
alienee – purchaser cannot run counter to the principle of reverse burden
enshrined in Section 106 of the Indian Evidence Act, and saddle him with the
liability to prove facts which are within the special knowledge of the Kartha and
his coparceners. (See, Dastagirsab Vs. Sharanappa, 2025 SCC OnLine SC
1983). If the purchaser fails to discharge this burden of proof, the alienation so
made would be valid only to the extent of the share of the Kartha. As pointed
out by Courts, the promptness with which the property’s shareholder or
coparcener decides to approach the Court is also a factor to be considered while
dealing with a suit for partition.
31.We will now look at few of the authorities which have dealt with the
aspect of necessity.
32.The first one is the judgment of Division Bench of this Court in
Vembu Iyer Vs. Srinivasa Iyenger and others, (1912) 23 MLJ 638. In that case,
a suit was presented to set aside the sale made by the plaintiff’s guardian in
1889. The sale had been made for discharge of certain debts due to the
plaintiff’s father. The plaintiff alleged that there was no necessity to alienate the
property. He had urged that with prudent management, the debts could have
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been cleared from and out of the income generated from the properties. Both the
Courts below have upheld the sale. Challenging the decrees, the second appeal
came before this Court. Justice Sundara Aiyar held that the position which the
Courts have to consider is whether in the circumstances that existed at the time
of alienation, the act of alienation would be regarded as a prudent one by men of
ordinary prudence in dealing with the property of a ward. He held no distinction
can be made between a sale or a mortgage because when the act of alienation is
done by a person who is the manager of the estate in which he has interest, he
will be equally bound, if under the circumstances the step taken was necessary,
proper, or prudent. He pointed out as follows:-
“Necessity” seems to connote the idea of warding off
an evil or the doing of something that cannot be
avoided or of something which it is one’s legal duty
to do.
33.Concurring with this view, Justice T.Sadasiva Iyer, held as follows:-
“I think the only safe and convenient rule is (a) that
if the guardian of a Hindu minor alienates the
minor’s property because he considers it after
weighing all the then existing circumstances, to be in
the best interests of the minor to make that
alienation, the minor is clearly bound by that act of
alienation: (b) that even if the guardian acted
wrongly, the alienee is protected if he acts in good
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faith after making due enquiry and if he is satisfied
on the representations of the guardian and on his
own independent enquiry that the guardian’s act
appears then to be clearly for the minor’s benefit.”
34.Having come to this conclusion, the learned Judges dismissed the
appeal with costs. I am alive to the position that this judgment related to
alienation of a property by a guardian and not by a karta. I am referring to this
judgment only for the purpose of elucidating the concept of necessity.
35.A similar issue arose yet again in the case of Ramsumran Prasad and
others Vs. Musammat Shyam Kumari and others, [AIR 1922 PC 356]. This
was a case where the reversionary heirs to the estate filed a suit against the
alienation of a property by the late estate owner’s widow, in order to extinguish
a mortgage decree. One of the issues that had to be decided by the Board was on
the scope and contention of the word ‘necessity’. Lord Phillimore J. speaking
for the Board held
“Necessity does not mean actual compulsion, but the
kind of pressure which the law recognises as serious
and sufficient”.
This view has been consistently followed by several High Courts.
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36.I only have to set forth the authorities which have concurred with this
view:-
(i)Santosh Kumar Mullick Vs. Ganesh Chandra Khan, (1926-
27) 31 C.W.N. 65;
(ii)Gur Prasad Vs. Ram Sukh and another, AIR 1952 All 938;
(iii)Gulab Devi Vs. Banwari Lal and others, ILR 1940 All 555;
(iv)Smt.Rani and another Vs. Smt.Santa Bala Debnath and
others, 1970 (3) SCC 722, (para.No.10).
37.It is at this juncture that Ex.A13 becomes crucial and relevant. Ex.A13
is the savings bank passbook standing in the name of Kandasamy Gounder,
S/o.Sinniah Gounder, namely, the 1st defendant. The passbook relates to
Account No.35-6413. It shows that the 1st defendant was a retired Mill
employee. The alienation in favour of the 4th defendant was on 01.08.1977 for
the alleged promissory note said to have been executed in the year 1976 and
1977. The promissory notes had not been produced before the Court by the 4 th
defendant. As to what happened to the promissory notes has also not been
explained by the him. The 1st defendant, after having filed a written statement,
had remained exparte. The 4th defendant being, a stranger-purchaser to the
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family, as pointed out earlier, the burden of proof lay upon him to substantiate
the existence of a legal necessity. None of the documents under Ex.B1 to Ex.B7
point out to the existence of the debt. Ex.B1 is the document executed in favour
of the plaintiff by one Karuppu Gounder. Ex.B2 is the sale deed executed in
favour of the 1st defendant by one Periya Gounder. This document corresponds
to Ex.A2; Ex.B3 to Ex.B7 are revenue records standing in the name of the 4 th
defendant. Ex.B3 to Ex.B7 are documents, which have come into existence,
after the presentation of the plaint.
38.As stated earlier, the plaint was presented on 04.08.1978. It was taken
on file before the Sub Judge at Coimbatore as O.S.No.653 of 1978. Ex.B3 to
Ex.B7 cannot be relied upon as they are post litem motam documents. In any
event, they are mere revenue records. I have discussed these documents in detail
in order to point out that none of the documents, even faintly point out to the
existence of the debts, exerting pressure on the property for the purpose of its
alienation, or indicate the alienation was by the Kartha of the family, the 1 st
defendant, towards the discharge of his moral or legal obligations in that
capacity.
39.The reliance by the Lower Appellate Court solely upon the written
statement filed by the 1st defendant for the purpose of coming to the conclusion
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on the debts and the existence of legal necessity for non-suiting the plaintiff is
opposed to the fundamental principle of law. If the defendants only proffer
pleadings, without evidence, to counter the case of the plaintiff, the plaintiff is
entitled to succeed, as the defendants have not met the burden of rebuttal.
Pleadings are no proof. When the defendants have set up a claim of legal
necessity and when the law demands the purchaser to demonstrate before the
Court, the existence of the legal necessity, failure to discharge the said burden
would constrain a Court to look against the defendants.
40.The error committed by the Lower Appellate Court was in relying
upon the pleadings, which were not supported with evidence. The logical
conclusion from the Lower Appellate Court’s judgment would be that, all that
the defendants would have to do is to file a written statement, and need not enter
the witness box to depose and subject themselves to oral evidence. That is
certainly now the purport of either the Evidence Act or the Code of Civil
Procedure. As much as the law declares that there cannot be any evidence
without pleading, it is equally true that mere pleading alone is insufficient for
the defendants to succeed or to displace the case of the plaintiff, when not
bolstered by any oral or documentary evidence. Pleadings without evidence is
akin to a wall without cement or steel. One nudge is sufficient to push the wall
to the ground.
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41.The plea that the amounts were spent by the first defendant towards
renovation of the house in anticipation of the marriage expenses, without any
evidence to that effect, cannot persuade a Court of law to conclude that there
existed a legal necessity for alienation.
42.Insofar as the plea of Mr.Anwar Sadath and Mr.L.Mouli are
concerned, it has to be addressed separately.
43.Mr.Anwar Sadath represents the purchasers of the property from the
lis pendens purchaser, Devarajan - 5th respondent. The person, who purchases
the property pendente lite, is bound by the decree that will be passed in the suit.
44.The 5th defendant, though served, with the summons in the suit,
remained exparte in the Trial Court. It is the plea of Mr.Anwar Sadath that
Devaraj, the 5th defendant, had passed away and his legal heirs were not
impleaded and hence, the decree passed in the appeal is a nullity. This plea does
not appeal to this Court. This is because, a lis pendens purchaser would be
bound by the decree passed in the suit. He does not have a right to get himself
impleaded. A transferee pendente lite is bound by the final decree in the suit,
irrespective of whether he / she had notice of the pending litigation. Law does
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not declare the transfer as void, but only makes it subservient to the decree to be
passed in the Court. It is for this reason that a lis pendens purchaser cannot take
a plea of bonafide purchaser. Worse is the case of Mr.Anwar Sadath’s clients.
They have purchased the property pending second appeal from the legal heirs of
the 5th defendant. If the 5th defendant would be bound by the decree passed in
the suit, the same logic would equally apply to a purchaser from the 5 th
defendant pending the second appeal.
45.Furthermore, as already stated earlier, the second appeal is confined
only with respect to the second schedule of the suit. The decree, insofar as the
suit items 3 & 4 are concerned, have not been appealed against by the
defendants and have attained finality. In an appeal preferred by the plaintiff,
with respect to suit item No.2, the defendants cannot plead that the Lower
Appellate Court should not have passed a decree with respect to suit item Nos.3
& 4. They should have preferred an independent appeal challenging the decree
passed by the Lower Appellate Court. That not having been done, this Court
cannot entertain the plea of either Mr.L.Mouli or Mr.Anwar Sadath, that the
decree passed by the Lower Appellate Court requires interference.
46.Mr.L.Mouli submitted that a compromise had been arrived at between
the appellant and respondents 3, 10 to 12 pending the appeal. He requested this
Court to record the same. Since this Court is concerned only with the second
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item of the suit property, it is always open to the parties to file a memo of
compromise before the Trial Court during the final decree proceedings and get
the same recorded, if it is otherwise valid in law.
47.In the light of the above discussion, the Second Appeal is allowed. The
substantial questions of law 2 & 3 are answered in favour of the appellant. This
Court holds that the defendants 1 & 4 have failed to prove the legal necessity
for the purpose of alienation. The sale deed executed by the first defendant in
favour of the 4th defendant is valid only with respect to the share of the first
defendant. It will not bind the share of the other coparcenors. Respondents 13 to
18, the lis pendens purchasers, can obviously seek allotment of the share which
their vendor would have possessed, in their favour in the final decree
proceedings. As the substantial questions of law 2 & 3 are answered in favour of
the plaintiff, there is no necessity to go into the first substantial question of law
with regard to notice and reply notice.
48.The learned Trial Court Judge is reminded of the judgment of the
Supreme Court in Kattukandi Edathil Krishnan and another Vs. Kattukandi
Edathil Valsan and others, [(2022) SCC OnLine SC 737]. Being a duty and
function of the Court, it shall immediately commence proceedings under Order
XX Rule 18 of the Code of Civil Procedure, appoint an Advocate Commissioner
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and ensure that the litigation that has commenced in the year 1978 is concluded
at the earliest. Considering the close relationship of the parties, this Court is not
inclined to impost costs.
20.02.2026
Krk
Index :Yes / No
Speaking/Non-speaking order
Internet :Yes / No
Neutral Citation :Yes / No
NOTE: Registry is directed to forthwith send the entire records.
To
1.Kandaswami Gounder
S/o Chinna Gounder, Old School Buildings, Nimili
Konampalayam, Coimbatore TK
2.Shanmugham (died)
S/o Chinna Gounder, Old School Buildings, Nimili
Konampalayam, Coimbatore TK
3.Marakatham
D/o Kandaswami Gounder, Old School Buildings, Nimili
Konampalayam, Coimbatore TK
4.Marappa Gounder (died)
S/o Rasa Gounder, Kaikolpalayam, Vallanapatti Village,
Coimbatore
5.Devaraj
S/o Palani Gounder, Kamaraja Palayam, Kannathu Pudur
Village, Avanshi TK.
6.Ammavasai Ammal
W/o Late Marappa Gounder, Vannan Thottam,
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Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
7.Thangarasu
s/o Late Marappa Gounder, Vannan Thottam,
Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
8.Viswanathan
s/o Late Marappa Gounder, Vannan Thottam,
Kaikolpalayam, Vallanpatti Village, Mailampatti post,
Via. Civil Artodrome, Coimbatore.
9.Saradhamani
W/o Shanmugam, Vannan Thottam, Kaikolpalayam,
Vallanpatti Village, Mailampatti post, Via. Civil
Artodrome, Coimbatore.
10.Thangamani
W/o Gurusamy, No.11/5 Sasthri Street,
Urumandampalayam, Coimbatore
11.Sulochana
W/o Thangavelu, 3/115 Kokangipalayam, Palladam,
Tituppur.
12.Kuppusamy
S/o Avinashi Gounder, 41 Periya Veethi,
Melakonampalayam Post, Coimbatore. R4 died. RR 6 to
9 brought on record as LRs of the deceased R4 vide
Court order dt 14/06/2019 made in CMP 10253 to
10255/2006 in SA 194/1994. RR 10 to 12 impleaded as
part respondents vide court order dt 19/01/2022 made in
CMP 13009/19 in SA 175/1994 -JNBJ
13.V.Saravanakumar
S/o. Venugopal, No.4, 8th Street Nehru Nagar West,
Coimbatore- 014.
14.S.Sudharani
W/o. Saravanababu, No.7/19B, CSI Colony,
Kondayampalayam, Vaiyampalayam, Coimbatore - 110.
15.Sri Saravanaa Fabs
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Rep. by its Partner V. Saravanakumar, No.391/4, 2nd
Street, Nehru Nagar West, Coimbatore - 014.
16.S.Sasikala
W/o. Sithaganapathi, No.2/108, Panikanoor, Samuthiram
Post, Omaloor Vattam, Salem - 306.
17.K.Mahesh Kumar
S/o. Karuppusamy, No.3/129, Manikampalayam,
Kunnathur Pudur, Coimbatore - 107.
18.T.M.Siva Shanmugam
S/o. Marudhachalam, No.14, Subramania Udayar Street,
Telungupalayam, Coimbatore - 039. R13 to R18 are
impleaded as respondents vide court order dated 4.9.2025
made in CMP.No.11803/2025 in SA.No.175/1994
(VLNJ)
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V.LAKSHMINARAYANAN J.
krk
20-02-2026
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